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Elder Law

Federal Income Tax Incentives Conservation Easements Changing in 2014

By Elder Law, Estate Planning, Land Conservation Easements, Tax Law

Question:     Are the federal income tax incentives for donating conservation easements going to change in 2014?

Answer:    The “enhanced conservation easement incentive,” which applied to conservation easements donated in 2013, raised the maximum deduction a donor can take for donating a conservation easement from 30% of their adjusted gross income (AGI) in any year to 50%.  It also allowed qualified farmers and ranchers to deduct up to 100% of their AGI, and increased the number of years over which a donor can take deductions from 6 years to 16 years.  Policy makers at the federal level had given conservation easement donors this tax benefit to encourage them to conserve land.   Because Congress did not renew the enhanced conservation easement incentive prior to the end of the year, it expired on Dec. 31, 2013.  Unless Congress acts, the tax deduction for a donation of a qualified conservation contribution will be the same rates as other charitable gifts. Attorney Sean Byrne of Bach & Jacobs has represented parties in multimillion dollar conservation land transactions and can advise you of your options regarding conservation easement donations.

January 7, 2014
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Can a Guardian Initiate a Probate Proceeding When the Ward Dies?

By Elder Law, Estate Planning, Guardianship, Probate

Question:     I was the guardian for a ward who has recently died.  Can I petition to open a probate proceeding and be appointed personal representative also?

Answer:    Usually, the named personal representative in the decedent’s will is the one who initiates the probate proceeding.  The guardian, who typically will have all of the deceased’s personal records, would normally notify all the family members and the personal representative designee upon the ward’s death.  However, sometimes the decedent dies intestate (without a will) or the designated personal representative is unable to serve.  The guardian is considered an “interested person” under the Florida Probate Code for the purposes of commencing probate proceedings and can open the probate.  The guardian may be required to commence the probate proceedings to transfer the guardianship assets to the probate estate.  However, there could be some cases where the guardian’s appointment as personal representative of the ward’s estate is inappropriate.  For example, if a conflict of interest existed between the ward and the guardian prior to the death of the ward, then the court may be inclined to appoint a guardian ad litem, an administrator ad litem, or a different personal representative all together.  If you are the guardian for a recently deceased ward or want to petition to be appointed the personal representative for a deceased ward, contact Bach & Jacobs to schedule an appointment with one of our attorneys.

December 26, 2013
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What Happens to a Guardianship When the Ward Dies?

By Elder Law, Guardianship

Question:  Does a guardianship end when the ward dies?  If so, what are the guardian’s responsibilities upon the ward’s death?

Answer:    Yes, a guardianship is terminated when the ward dies.  A guardian of the person is discharged upon the death of the ward after filing a death certificate.  A guardian of the property is also discharged when the ward dies.  However, the guardian must first file a final report, including an accounting, and petition for discharge for court approval before the discharge is granted.  The guardian seeking discharge needs to know the requirements of filing the report and the petition.  For example, the Florida Probate Rules require notice of the report and petition to be served on certain interested parties.  If you are the guardian for a recently deceased ward or want to petition to be appointed the personal representative for a deceased ward, contact Bach & Jacobs to discuss your matter and receive assistance.

December 20, 2013
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Home for the Holidays: Leaving the Nursing Home to Share in Holiday Gatherings

By Elder Law, Long-Term Care

Question:  Our father is in a nursing home, but we would like to bring him home on Thanksgiving and Christmas day so we can all be at the table together.  Will that disqualify him for Medicare coverage?

Answer:    Under Medicare law, a resident at a skilled nursing facility can leave the nursing home for a day or two to enjoy the holidays with family and friends without losing Medicare coverage.  This fall with Thanksgiving, Hanukkah, Christmas and New Year there are lots of opportunities for seniors in nursing homes to re-connect with family and friends.  You can help facilitate those family gatherings without worrying that your father will lose Medicare coverage if he leaves the facility to participate.  The Medicare Benefit Policy Manual states that “an outside pass or short leave of absence,” such as attending a special religious service, holiday meal, or other family vacation is “not, by itself evidence that the individual no longer needs to be in a [skilled nursing facility].”  However, you should be aware that the nursing home can charge you for a bed-hold payment under some circumstances.  If you have questions about arranging for your loved one’s care and qualifying for public benefits like Medicaid, Medicare, and Veterans Benefits, contact Babette B. Bach, a Board Certified Elder Law Attorney and elder law expert.

December 13, 2013
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Is an Attorney Required for Probate Administration in Florida?

By Elder Law, Estate Planning, Probate

Question:  If I am the personal representative for an estate in Florida, am I required to have an attorney for the probate administration in the Florida circuit court?

Answer:    Florida law requires an attorney in a formal probate proceeding except in the rare case where the personal representative is the sole interested person. However, Florida probate procedures are complicated and most non-lawyers will have a challenging time trying to proceed without an attorney.   Just determining who fits the statutory definition of “interested person” requires an understanding of the Florida Probate Code and the Florida Rules of Probate, which apply to even the most basic estate administration.  If you have been named the personal representative in the will of someone recently deceased and you would like assistance with the administration of the estate, contact Bach & Jacobs to meet with one of our attorneys.

December 6, 2013
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Where Can I Research the Florida Probate Law?

By Elder Law, Estate Planning, Probate

Question:     Where can I find trusted, general information on the probate process in Florida?

Answer:    One obvious source of information on probate law topics in Florida is on the Bach & Jacobs, P.A. website where you can view frequently asked questions relating to probate and the administration of estates.  Another source for a general overview of basic probate concepts is the Probate in Florida Pamphlet, available for free viewing at the The Florida Bar website. If you would like advice or assistance specific to your probate matter, contact Bach & Jacobs at (941) 906-1231 to schedule an appointment with one of our attorneys.

December 3, 2013
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Can Lawyers Be Beneficiaries of a Client’s Estate in Florida?

By Elder Law, Estate Planning, Probate

Question:  I was appointed personal representative of an estate and I saw in the will that the lawyer who drafted it wrote himself in as a beneficiary of the estate.  That seems inappropriate.  Is that ethical?

Answer:    Unless the attorney is related to the deceased client, Florida law prohibits such a gift.  The Florida Legislature passed a law that became effective October 1, 2013 that voids a gift to a lawyer, or certain persons related to or affiliated with the lawyer if the lawyer prepared the instrument making the gift or solicited the gift.  An exception is made for the lawyer or recipient of the gift who is related to the client.  If you are the personal representative of an estate and would like assistance with the administration of the estate, contact Bach & Jacobs to have your estate planning documents reviewed by our attorneys.

November 26, 2013
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Are Holographic Wills Valid in Florida?

By Elder Law, Estate Planning, Probate

Question:   I read on the internet that I could handwrite my own will without having the formality of witnesses and that the will would be valid for probate.  Is that true?

Answer:    While you can certainly handwrite your will, in order to be valid in Florida a will must be signed in the presence of two witnesses, who must also sign the will in the presence of the testator and one another.  Some states recognize handwritten or ‘holographic wills’ and excuse the lack of other formalities, such as witnesses, but the Florida Probate Code does not.  If one tries to have a holographic will admitted to probate in Florida that did not comport with the proper formalities of will execution, the decedent’s estate will be distributed according to the laws of intestacy, not the provisions of the invalid will.  If you are concerned that your will or trust may be invalid under Florida law, contact Bach & Jacobs at (941) 906-1231 to have your estate planning documents reviewed by our attorneys.

November 22, 2013
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Can an Out-of-State Personal Representative Bring a Wrongful Death Action in Florida?

By Elder Law, Probate

Question: I am the personal representative of an estate located outside of Florida.  The deceased died in Florida in an auto accident.  However, the deceased did not reside there or own any assets in Florida.  Can an out of state personal representative bring a wrongful death action in Florida even if there is no ancillary probate proceeding in Florida?

Answer:    Yes.  There may be instances where the resident of another state dies in Florida without having any assets in Florida that would require a probate proceeding in Florida.  Under Florida law, a foreign (non-Florida) personal representative may file a wrongful death claim in Florida court if the activities that gave rise to the action occurred in Florida.  The personal representative that brings the suit does not have to be a Florida resident.  The foreign personal representative will want to retain an attorney licensed in Florida to represent them in the action.  Additionally, the out of state personal representative or executor will need to present duly authenticated letters of administration from the other state’s probate court.

November 19, 2013
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Tips for Florida Personal Representatives: How to Locate Online Assets for Probate?

By Elder Law, Probate

Question:  My husband recently died.  He was very tech savvy and handled all of our finances online.  If the court appoints me personal representative, how am I going to find all his financial assets and accounts for administration of his probate estate?

Answer:    Your situation is part of a growing trend as we move to a ‘paperless society.’  A good place to start to locate assets for the purposes of probate administration are smartphones, computers, email, and voicemail.  You can look for information about assets by looking on your husband’s computer for favorites folders and websites, bookmarked websites, browsing history, and especially any financial software.  If you need assistance with the handling of your husband’s estate, you can contact the attorneys at Bach & Jacobs.  Our team stays on the cutting edge technologically and can show you new and innovative ways to identify all assets.  You may even find that there are assets out of state that require an ancillary administration in the other state.  Contact Bach & Jacobs at (941) 906-1231 to assist you with identifying and valuing digital assets for both in-state domiciliary probate administration or ancillary administration in Florida.

November 15, 2013
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